CLOYICE B. BARNEY, )
vs. ) CASE NO. 76-1353
Respondent. )
in-line-of duty if it could be shown that he died of heart disease, hypertension or hardening of the arteries.
Depositions of Robert J. Myerburg, M.D., Eric Lian, M.D., and E. Wilson Purdy have been considered in this order. The portions of the depositions on matters that are not in evidence are not considered in this order.
Cloyice B. Barney, the Petitioner, is the surviving spouse of Harold W. Barney, a deceased member of the Florida Retirement System under Chapter 121, Florida Statutes, who was employed by the Dade County Public Safety Department at the time of death, on June 3, 1975.
Petitioner timely filed her petition for administrative hearing upon denial by the agency, the Division of Retirement, of her request of payment pursuant to the in-line-of-duty death benefits provision, Section 121.019(7)(c)1., Florida Statutes (1975).
The decedent, Harold Barney, was involved in an automobile accident on October 4, 1972, at approximately 6:15 P.M. He was driving a county car which suffered damages estimated at One Hundred Fifty Dollars ($150.00). There is no substantial evidence that Mr. Barney was injured in this accident. He did not mention any injury to his family, his employer or to his personal physician. His son testified that he did not notice any physical change in his father immediately after the accident, but state that after a period of time he began to limp off and on for a couple of days and then maybe months later he's start to limp again. Upon questioning, the deceased would respond he was tired but did not attribute the limp to any accident. Dr. Harvey L. Jorgenson first saw the deceased on October 3, 1974. Chief Barney did not relate a history of any type of injury to Dr. Jorgenson, but Dr. Jorgenson testified that his walk "was a little bit different. . . it wasn't exactly a limp."
Two or three weeks before his death Mr. Barney awoke feeling extremely tired. He continued to follow his normal work schedule until May 30, 1975, when he left work to see his personal physician who admitted him to the hospital. He died in the hospital three days later, on June 3, 1975.
Dr. Joseph H. Davis, Chief Medical Examiner for Dade County, Florida, performed the autopsy at the request of the family, on June 4, 1975.
When asked his opinion of the cause of death, he stated,
In my opinion, the cause of death was congestive heart failure due to pulmonary thromboemboli. That means blood clots which break loose within the veins of the body and are carried through the venous system to
the lungs to lodge in the lungs, due to bland plebothrombosis of lower extremities --
phlebo meaning vein, thrombosis, clots, lower extremities meaning from the groin region down, somewhere in that area, having origin in that area. And by bland, I mean that there was no evidence of an active inflammatory condition, in which case the diagnosis would have been thrombophlebitis, meaning inflammation of veins.
They had the shape and the configuration of origin from lower extremity as opposed to, say, upper extremity or pelvis.
Dr. David stated that he found evidence of the following diseases: (1) moderately enlarged heart of "the type of weight increase [of the heart] that would be seen with somebody with hypertension," (2) a small tumor in the center of one of the adrenal glands called a pheochromocytoma, and (3) both kidneys were enlarged with cysts, polycystic kidneys associated with hypertension. He found no evidence of prior injury or arterial disease. He was puzzled as to how the thromboemboli was formed.
The dissection of the deceased lower extremities was confined only to the area immediately
above the knee joint, the back of the knee
where there is a major collection of veins, the large popliteal vein is formed; and, also, my dissection continued from the back of the knee, the popliteal area, down to about midway on the calf. I did not go into the ankles nor did I carry my dissection of the femoral and afemoral veins up through the thigh.
In reply to the query, "Did you find any evidence yourself of prior trauma to the lower extremities?" he stated,
No. The extremities appeared symmetrical and normal in appearance. There were no obvious, significant scars, swelling, discolorations; and, in the history, my inquiry of Dr.
Jorgenson revealed no history of trauma.
In answer to the question, "Would the fact that this accident occurred in 1972 rule out the possibility that the blood clots were formed from a trauma that occurred in 1972?" Dr. Davis replied,
It would rule it out in the sense that, in one mechanism -- that is, a mechanism inflammatory reaction -- that type of mechanism, I think, would be pretty-well ruled out because, had that been the case, I would expect, despite an individual being stoic, episodes of swelling of the extremities and incapacitation and discolorations of the skin from poor circulation and so forth.
The other type of tie, where there can be a tie-in, is where the original episode was severe enough to result in thrombi, distortion of the veins, healing with scarring and partial interference with blood flow through the veins so that, instead of a normal smooth-walled flexible tube with valves placed at regular intervals, there are valves that would have been distorted by thrombus, obliterating that area of the vein, and then the valve is no longer competent and the walls are narrowed in one area, but not in other areas.
And, if that situation occurs, then the stage is set for the subsequent formation of thrombi at some indetierminant time in the future; and that's the only way -- If there were trauma in 1972 and if, over a period of time, the apparent symptoms of the trauma disappeared and everything was quiescent and then this occurred, if there is a link it would have to be on the basis of distortion of the veins left over from the previous trauma and, at this particular time, the interference with blood flow was sufficient to produce some additional clots in this area that was set up for it.
Dr. Davis testified that the limping if it occurred subsequent to the accident and that if there was no prior diagnosis of arthritis or something,
then, following a trauma, showed residual signs of discomfort, incapacitation, to wit:
limping, then that would set the stage for consideration of the original trauma as possibly playing a role in the subsequent events which led to this death.
Dr. Davis did not dissect the legs stating,
it's not my custom to dissect lower extremeties due to the funeral customs of this country. So, if I encounter a person with a pulmonary embolus and where there is a perfectly logical explanation based on circumstances -- a person, say, with congestive heart failure, cancer, et cetera, severe disease process, he's been confined to bed -- I usually don't dissect the legs.
Dr. Davis stated that the emboli that he found in the lungs were in various stages of healing and there "was some where the margin of the clot was already being incorporated into the wall of the pulmonary artery by scar tissue." He stated, "It wasn't something that had impressed me as having been there much longer" than perhaps two weeks or so.
Dr. Davis was asked the question, "If he had suffered an injury to such an extent that it caused him recurrent limping and we will assume further that each time there was a flare-up or some of the time there was a flare-up if there would be clot formed, would that, be a reasonable possibility that that could happen?" Dr. Davis replied, "It's a possibility, yes, but" and in answer to the question, "Can you say on that evidence, [as to his limping] within a reasonable degree of medical probability, that the accident was the cause of the emboli?" Dr. Davis replied, "No, I cannot."
Dr. Harvey L. Jorgenson first saw Mr. Barney on October 3, 1974, and found that Mr. Barney had had a kidney stone removed in 1971 and that he had repeated attacks of malarial fever after World War II but none after 1971. He found that he weighed 204 pounds where his normal weight should have been 185 and therefore, was about 20 pounds overweight. His blood was normal except his uric acid was 8.5 whereas the upper limit is 8 in the normal range. His blood cholesterol was 380 but should have been not higher than 300. His blood pressure was 140 over 100 and should have been not more than 90. It was suggested that he diet and take a medication prescribed for his blood pressure.
Dr. Jorgenson saw him on the 11th of April, 1975, and suggested that he reduce a little more in weight and continue to take medicine for his blood pressure, which had improved. He was told to report to the doctor if anything changed. The next time Dr. Jorgenson saw Mr. Barney was the 30th of May, 1975, at which time he was very ill and was sent to the hospital.
Dr. Jorgenson stated that there were many veins in the body that are the size and shape of the leg veins and stated that it was an enigma to him as to the cite of the emboli.
Dr. Eric Lian stated,
The most frequent site for venous thrombosis is in the popliteal -- what I mean, in the posteria vein, in the posteria area, the calf vein, the veins of the calf."
When asked, "Is there any connection between hypertension and increased coagulability?" he said,
It depends on the causes of hypertension and its consequences.
If a patient has essential hypertension and then develops a congestive heart failure, certainly suggest increased chance of thromboembolism.
[Question:] Is that what happened in this case?
This patient, I think one can't say with certainty.
He has a history. It's possible, but I don't think one can say it with certainty. And I will say most of the causes of
thromboembolism, even young, healthy people, you cannot find any cause at all, nor any concurrent theory on this, you can't find."
He also stated:
[Question:] "Can you state, categorically that that stress was not linked to his death?
I cannot say it's a cause of death.
That's all I can say. Okay? Stress, itself, it cannot be a cause of death -- mental stress-- unless you have physical abnormality to
begin with."
Dr. Robert J. Myerburg stated that the shape of the emboli was from the vein rather than from the heart but that he did not know where the emboli came from. He stated, "I would suspect that the veins of the legs being most likely in an obese individual."
Dr. Myerburg in answer to the question whether it is impossible for emotional stress to cause the venous thrombi to occur stated, "Well, the present state of knowledge knows of no relationship between emotional stress and the formation of venous thrombi."
Dr. James R. Jorgenson, an assistant county attorney, stated that there were two major events occurring in addition to the major event of administering a large metropolitan police agency that was under investigation in the two or three week period before Mr. Barney died. That the deceased held a very responsible position and in addition was pursuing a college degree and was president-elect of the downtown Kawanis Club.
Chief E. Wilson Purdy, Director of Public Safety and Sheriff of Dade County, testified that the deceased was an extremely conscientious employee and his main assistant. His duties were stressful and complex and he also used his time to pursue his education and civic involvement which was encouraged by his employer.
The Hearing Officer finds:
There was a possibility that the deceased, Mr. Barney, suffered bodily injury in the accident in which he drove his automobile into a car rail and sustained One Hundred Fifty Dollars ($150.00) damage to the vehicle. There is a possibility he injured his lower extremities. The fact of an injury was not established.
There is a possibility that an injury caused the blood clot or embolism which ultimately reached the heart and caused the death of Mr. Barney. There is a possibility said injury was the same injury which might have been sustained on October 4. The fact that an injury caused the clot was not established.
Mr. Barney lived a very stressful active life which included a difficult job, a hard course of educational pursuit and a position of leadership in the community particularly as an officer in the Dade County Kawanis Club.
There has been no evidence produced to show stress caused the death of the deceased although some feel it is a factor in developing coronary artery disease, heart attacks and sudden death. The fact that job stress caused the death was not established.
The proposed recommended orders together with the briefs of the parties have been carefully considered in the rendition of this order as has the depositions of the two doctors and the Director of Public Safety and Sheriff of Dade County, Florida, and the testimony adduced at the public hearing.
CONCLUSIONS OF LAW
Section 121.091(7)(c)., Florida Statutes (1975), provides:
The surviving spouse of any member killed in the line of duty may receive a monthly salary being received by the member at the time of death for the rest of the surviving spouse's lifetime, unless said surviving spouse remarries, in which case the pension shall terminate on the date of remarriage; or, in lieu of the above, the surviving spouse may elect to receive the benefit provided in paragraph (b) of this subsection.
Section 121.02(14), Florida Statutes (1975), provides:
Death in line of duty' means death arising out of and in the actual performance of duty required by a member's employment during his regularly scheduled working hours or
irregular working hours as required by the employer. The administrator may require such proof as he deems necessary as to the time, date, and cause of death, including evidence from any available witnesses. Workmen's compensation records under the provisions of chapter 440 may also be used.
The evidence has not shown that the deceased, Harold W. Barney, was killed in the actual performance of duty required by his employment and therefore entitled to benefits pursuant to the foregoing statutes.
"Killed" is defined in Black's Law Dictionary, Revised Fourth Edition, as follows:
The passive verb 'to be killed' must generally impart to every one a meaning of some kind of external violence.
There is no showing of an "external violence" and the immediate cause of death was congestive heart failure or heart attack which "might properly be classified as an internal bodily injury." (Voelper v. Combined, Inc. Co. of America, Fla., 73 So. 2d 403.)
'Where circumstantial evidence is relied on in a civil case to prove an essential fact or
circumstance essential to recovery, the rule is that the particular inference of the existence of the fact relied on as arising from the circumstances established by the evidence adduced, shall outweigh all contrary inferences to such extent as to amount to a preponderance of all of the reasonable inferences that might be drawn from the same circumstances.' See Fireman's Fund Indemnity Co. v. Perry, 149 Fla. 410, 5 So.2d 862, . . .
It is within the province of the Hearing Officer to evaluate or weigh the evidence in this case. The circumstances surrounding the accident of October 4, 1972, is not susceptible of a reasonable inference which would authorize a finding that the deceased sustained a bodily injury which caused a blood clot which some three years later caused his death.
Only when an inference such as the inference that Barney experienced bodily injury while driving the county car on the night of October 4, 1972, is inescapable, that is to say, when no contrary reasonable inference may be indulged, such inference is elevated for the purpose of further inference to the dignity of an established fact.
Petitioner is not entitled to a favorable decision unless the inference that a blood clot was caused from said bodily injury is the only reasonable inference which may be drawn. The second inference must meet the test as did the first inference if it is to be a proper predicate for the further inference that a blood clot caused by the bodily injury was the cause of death. C.F. Voelper v. Combined Ins. Co. of America, supra.
The first inference does not exclude all of other reasonable theories. No evidence of bruises or abrasion was found on Barney's body. It is reasonable to assume that he received no bodily injury and that he limped (if he did limp, a fact that is not established by conclusive evidence) from exhaustion or perhaps arthritis. It is reasonable to speculate that his obesity, his high blood pressure, his polycystic kidneys, or an unknown trauma may have caused the clot which caused Mr. Barney's death.
Further, the only evidence that Barney was driving "in the actual performance of duty" was the fact that he had an accident while driving a county car at 6:15 P.M. on a working day, and that he often worked until that hour although the regular working hours ended at 5:00 P.M. It was not shown that he had been recalled to duty or that he was not involved in civic or personal educational pursuits at the time of the accident. He reported no personal injury and never said that he had been injured in an accident. It is reasonable to believe that he suffered no bodily injury and that he had left work and was in pursuit of private interests.
The presumption stated in Section 185.34, Florida Statutes, Disability in line of duty is inapplicable. Mr. Barney was not a member of the Retirement System established by Chapter 185 and it has not been established that he died as a result of tuberculosis, hypertension, heart disease or hardening of the arteries. It was not established that he had a physical examination prior to his unexpected employment by Chief Purdy.
In summary, the evidence on the essential points do not preponderate in favor of the Petitioner so as to produce a reasonable belief as to the
Petitioner's right of recovery. C.F. Escambia County Electric Light and Power Co. v. Sutherland, Fla., 55 So. 83.
There is a possibility that Mr. Barney suffered bodily injury in an accident on October 4, 1972; (there is a possibility that if there was an injury it was to the lower extremities); there is a possibility that the accident so injured him as to cause a clot that was dormant for some three years and a possibility that it finally formed or broke loose and caused his heart failure. The expert testimony was in terms of "possibilities" rather than "probabilities" and therefore what actually happened to cause Mr. Barney's death is only speculative.
Deny the request for payment under Section 121.091(7)(c)1., Florida Statutes (1975).
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of October, 1977.
DELPHENE C. STRICKLAND
Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1977.
Stephen S. Mathues, Esquire Division of Retirement
Brian S. Duffy, Esquire Post Office Box 1170 Tallahassee, Florida 32302
